People v. Hicks

Decision Date23 October 1986
Citation500 N.E.2d 861,508 N.Y.S.2d 163,68 N.Y.2d 234
Parties, 500 N.E.2d 861 The PEOPLE of the State of New York, Respondent, v. Roger HICKS, Appellant.
CourtNew York Court of Appeals Court of Appeals
Susan V. Tipograph, New York City, for appellant
OPINION OF THE COURT

KAYE, Judge.

We now answer the question reserved in People v. Brnja, 50 .Y.2d 366, 369, 429 N.Y.S.2d 173, 406 N.E.2d 1066: in the absence of probable cause, whether and when it is permissible for the police, having made a lawful stop, to detain the suspect and transport him to the crime scene for possible identification.

Shortly after 4:00 a.m. on November 12, 1981, Police Officer Murray Wright and his partner heard a radio report that a holdup had occurred at a nearby factory. As they headed toward the factory in their patrol car, another broadcast seconds later identified the robbers as two black men, both about five-feet five-inches tall, in a green Pontiac with black trim. At approximately that moment, at an intersection about a quarter mile from the factory, the officers saw two black men in a grey and black Buick sedan, turning out of the street near the factory, with no other traffic at the intersection. Both men appeared to Wright to be "sitting low in their seats", indicating their height. Suspecting that they might be the robbers, the officers pulled them over.

Upon approaching the car, Wright (a police officer for 15 years) observed that both men seemed about five-feet five-inches tall. Asked where they had been, they responded that they were coming from work at American Brass, which Wright knew was not in the area, and in fact was miles away in the opposite direction. The officer then ordered the men out of the car and patted them down for weapons. He told them about the robbery, that he was going to take them to the factory for possible identification; he intended to release them if they were not identified. The passenger got into the back seat of the patrol car while defendant, the driver, first went to park the car nearby and then also got into the patrol car. Neither was handcuffed, and both accompanied the police without objection. There is no evidence that guns were drawn at any point. No additional questions were asked. Less than a minute later the patrol car arrived at the factory--these were the first police officers on the scene--where three of the victims identified both suspects. They were then placed under arrest, and they and the car were searched, revealing weapons, as well as other implements and fruits of the crime. In Wright's estimation, approximately 10 minutes had elapsed between completion of the holdup and the identification.

While defendant--convicted after a jury trial of first degree robbery and related offenses--below challenged also the showup and the automobile search, on this appeal only the stop, and the subsequent detention and transportation to the rime scene, are in issue. 1 We conclude that both were permissible and therefore affirm the conviction.

The warrantless stop and frisk were a seizure violative of the State and Federal Constitutions (N.Y. Const., art. I, § 12; U.S. Const. 4th Amend.) unless based on reasonable suspicion of criminal activity (CPL 140.50), meaning " 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant intrusion' ". (People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39; see also, People v. Cantor, 36 N.Y.2d 106, 113, 365 N.Y.S.2d 509, 324 N.E.2d 872; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) Both courts below found the stop and frisk supported by the officer's reasonable suspicion that defendant committed the robbery. Reasonable suspicion involves a mixed question of fact and law, and when there is support in the record for that undisturbed finding the matter is beyond the scope of our review (see, People v. Van Luven, 64 N.Y.2d 625, 627, 485 N.Y.S.2d 38, 474 N.E.2d 246; People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447).

Defendant's assertion (adopted by Appellate Division dissenters) that the only basis for the stop was that the men in the car were black in a white neighborhood presents an issue of sufficiency and thus raises a question of law (People v. McRay, 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015). But that argument overlooks the other evidence corroborating the radio report, including the presence of two men of apparently equal size in a car close to, and coming from the direction of, the factory where a robbery had occurred only minutes before, at 4:00 a.m., with little or no other traffic in the area. There was thus sufficient evidence to raise an issue of credibility, placing the undisturbed finding beyond our review.

The presence of reasonable suspicion to support the original stop and frisk, however, still leaves open the question whether an otherwise valid stop became invalid by virtue of the subsequent detention and transportation of defendant to the crime scene. At the outset we reject the People's contention that the police action was supported by probable cause, which would justify even an arrest and end our inquiry. Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed by the suspect (CPL 140.10; see, People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). While the suppression court found probable cause to arrest, significantly the Appellate Division did not agree; indeed, two Justices believed that even reasonable suspicion was lacking. Nor can we hold that the facts known to the police at the time--including a nonspecific description of the perpetrators and some variation from the description of the automobile--gave rise to a reasonable belief as a matter of law that these suspects had committed the robbery. In the absence of probable cause, we must consider whether the actions of the police in detaining and transporting defendant to the crime scene violated his State and Federal constitutional rights to be free of unreasonable governmental intrusions.

Resolution of this question must begin with characterizing the police action: was it an arrest (see, CPL 140.05, 140.10, 140.15) or a stop (see, CPL 140.50; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, supra)? Next, if not an arrest but a Terry-type stop, did the police action here exceed the allowable limits of such a stop? We determine that, on the facts before us, the detention and transportation were not an arrest, but a permissible incident of a lawful stop? 2

An arrest and search of a suspect are unquestionably unlawful without probable cause (see, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; People v. Battaglia, 82 A.D.2d 389, 442 N.Y.S.2d 316, revd. on dissent of Hancock, Jr., J., at App.Div. 56 N.Y.2d 558, 450 N.Y.S.2d 178, 435 N.E.2d 395). But not every seizure is an arrest. By the same token, the police testimony that defendant was arrested only after identification by the victims is not conclusive of the issue. Even without a technical formal arrest, a suspect's detention may in fact be the equivalent of an arrest, requiring probable cause. As with many other questions in this troubling, sensitive area of police encounters with private citizens, the desire for a fixed list of factors that will guide persons in the field and courts sitting in review is frustrated by the speed and individuality with which such situations develop. No checklist has yet been assembled that would facilitate mechanical determination of when a given set of circumstances equals an arrest (see, Dix, Nonarrest Investigatory Detentions in Search and Seizure Law, 1985 Duke L.J. 849, 921; Preiser, Confrontations Initiated by the Police on Less than Probable Cause, 45 Albany L.Rev. 57, and LaFave, Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith", 43 U.Pitt.L.Rev. 307). We have rejected as standards for determining when a de facto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen (see, People v. Chestnut, 51 N.Y.2d 14, 20, 431 N.Y.S.2d 485, 409 N.E.2d 958; People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 and looked instead to "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" (People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, supra). Applying this test, it is clear that the police action fell short of the level of instrusion upon defendant's liberty and privacy that constitutes an arrest. Indeed, even on a wholly subjective analysis, we would conclude that defendant could not reasonably have believed that he was under arrest.

Defendant was not handcuffed, there was no show of force, he was permitted to park the car nearby before accompanying the police, he was not taken to the police station, the total time and distance involved were very brief, he was told the specific, limited purpose of the detention, and no information was asked of him after the initial inquiry. In direct contrast are Dunaway v. New York (supra), where defendant was taken from his home in a police car to the station, placed in an interrogation room, given Miranda warnings and questioned at length by officers; People v. Battaglia (supra), where defendant was handcuffed and his pockets searched, and he was placed in a police vehicle without any explanation of the circumstances while the police determined whether a crime had occurred; and People v. Henley, 53 N.Y.2d 403, 442 N.Y.S.2d 428, 425 N.E.2d 816, where, having first been confronted by a drawn gun, defendant was handcuffed, placed in a patrol car,...

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